ACTUAL “CASE HISTORIES”: Jana, 34, was an experienced graphic artist employed by a large website development company. For five years, she was a star performer, and over time rose to a Senior Graphic Artist position. The workload had grown quite considerably in recent years, due to her employer’s trying to get more and more work done with fewer and fewer employees. Still, Jana was the kind of person who exercised seven days a week, and always had the energy to do everything she wanted, always with a bright smile and a cheery personality.

Lately, though, Jana didn’t feel quite right, and seemed increasingly unable to do her work. She experienced frequent exhaustion and problems concentrating. She couldn’t figure it out. “Could this be something that comes with your mid-30’s?” she asked herself, but it was surely more than that. Little by little, all sorts of things began to bother her: fatigue, fevers, hair loss, joint pain, sensitivity to light, and even mouth sores. They came and went. After seeing four different doctors, all of whom performed blood tests, none of whom could diagnose her problem, she was near the end of her rope. Finally, a rheumatologist diagnosed her with systemic lupus erythematosus, or “lupus” for short.

Jana learned that lupus is an autoimmune illness affecting women more than men by a ratio of 7 to 1. Actually, it is a collection of autoimmune illnesses, in which the human immune system becomes hyperactive, and attacks normal, healthy tissues. Treatment consists primarily of immune-suppressive medications, primarily corticosteroids, although new drugs have recently come to market.

Jana had good days and bad days, but more and more they were bad. Unfortunately, her bad days affected her work performance so much that she received an annual performance review of “Does Not Meet Expectations,” and she was put on “Final Warning.”

Though reluctant to share her problem with those at work, Jana spoke with her Human Resources Director, who was sympathetic, but clear in her message: there was little she could do. She said, “The work has to be done; if you can’t do the work, someone else has to.” With time not on her side, Jana consulted us to review her work options.

LESSON TO LEARN: It seems to be more and more common: employees of all ages have difficulty performing their work due to one or more illnesses, medical or otherwise. Some attribute this phenomenon to the increasing stress so many employees are experiencing at work, which is affecting their health. Some say it is the increasing workload, increasing hours demanded, and fewer and fewer sick days, vacation days and holidays. Some suggest that it is attributable to the many chemicals in our food, water and environment.

Whatever the cause is, our office is seeing more and more cases of employees feeling ill, many with experiencing stress-related illnesses, and seeking alternative ways of coping and recuperating. While each person’s facts and circumstances are different, and because the options available to people in this situation can be confusing, people seek clarity. For many people, just knowing the available options, in and of itself, seems to reduce stress.

While figuring out exactly which options are available to you, and which you should pursue, and how they are related to each other can be as frustrating, “If you need to know, you need to know.”

HERE ARE 13 AVAILABLE OPTIONS: Here are thirteen different options available to those who are having a hard time doing their work due to illness or disability. Regardless of the options you are considering, your first step always needs to be to find out what your employer’s “illness-related” policies, plans and practices are, which in larger companies generally means contacting your Human Resources representative. Don’t be too surprised if your Human Resources representative is confused, too, because the options available to you are often interrelated, and confusing to them, as well.

1. Paid Sick Days – Quite obviously, using your available paid sick days (if any) is your first and most easily accessible option. That said, using your sick days has become a bit more complicated in recent years.

Traditionally, most employers provide their employees with a number of paid sick days each year, although the variety of sick-day grants is great. Most sick days are “earned” over time, that is, they accrue each month of employment in the calendar year. Some employers permit their employees to carry over unused sick days from one year to another; some do not. Some employers permit their employees to get paid for not using their sick days; most do not.

Increasingly, employers grant their employees a certain number of “Paid Time Off” or “PTO” days each year, which include (a) sick days, (b) vacation days, and (c) holidays, and permit the employee to use them however they wish. The introduction of “PTO” tends to diminish the amount of total paid days off that employees receive.

In many countries, employees are legally entitled to a certain number of sick days. That is rare in the United States, although more and more cities and states are considering legislation requiring a minimum number of paid sick days each year. (At this time, the New York City Council is considering such a law.)

In whatever way your employer provides paid time off for employees who don’t feel well, it is wise to (a) make sure you keep track of your employer-provided paid sick time, (b) make sure you know and follow the procedure(s) you need to follow to be considered off for health reasons and not simply “absent from work,” (c) try to find out if paid sick days are required in your home state or city, and (d) make sure you don’t lose accrued sick days to confusion or error on the part of your employer’s Benefits or Human Resources Departments.

Generally, those who do not take sick days while employed, or in each year they are available, simply lose them; only rarely are employees permitted to “carry over” sick days from one year to another. Those who use their paid sick days are saying, in effect, “I am not well now, but I will return as soon as I am recuperated.” That said, there is no legal requirement that an employee return after taking his or her sick days.

Illness or Injury, and related job difficulties raise many issues, including sick day availability, FMLA rights, disability insurance, and workers compensation. We offer a Model Memo Notifying Your Employer of Illness or Injury and Requesting All Relevant Information. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [click here.] Delivered Instantly By Email to Your Printer.

2. Paid Vacation Days – The most significant difference between paid sick days and paid vacation days is that paid vacation days often must be requested in advance, at some employers advance requests are required months in advance. Still, some employers will permit, if requested, employees to use earned vacation days for sick time without prior request. Some employers will even permit unearned vacation days for this purpose.

Don’t presume anything is impossible, especially if you are a valuable and valued employee, despite anything set forth in an employee handbook, policy manual or otherwise.

Generally, those who do not take earned vacation days while employed, or in each year they are available, cannot “carry over” vacation days from one year to another. Some employers do permit carryover, at least for a certain number of days. Those who use their paid vacation days to undergo treatments or to recuperate are saying, in effect, “I am not well now, but I will return as soon as I am recuperated.” That said, there is no legal requirement that an employee return after taking his or her paid vacation days.

3. Unpaid Family Medical Leave Act (FMLA) Leave of Absence – In the U.S. a federal law named the Family Medical Leave Act, and called “FMLA” for short, provides most employees the right to have an unpaid leave of absence lasting up to 12 weeks each year. (For more information on FMLA, you can review a newsletter I wrote called “The Family Medical Leave Act (“FMLA”) – The 50 Things You May Need to Know.” You can do so by simply [clicking here.]

I have found that FMLA (a) is far too often overlooked, (b) of great potential value, (c) not often mentioned by Human Resources representatives, because so many managers get upset when employees take FMLA leaves of absence, and (d) is wonderfully helpful to those not feeling well.

FMLA may require that your physician certify that you would be well-served by having some time off. I have never heard of a physician refusing to do so, which is a fairly simple process. The very first thing to do if you are not feeling well and may need some time off is to send a request to your Human Resources representatives requesting FMLA forms and procedures by writing in an email. From the moment you do so – whether or not you later actually request a FMLA leave of absence – you will be in a somewhat “protected” position from firing, demotion and the like.

Important Note: Many employers will permit employees to use their unused Sick Time and Vacation Time to get paid during an otherwise unpaid FMLA leave of absence. Some even require it. Also, some employers are quite generous by their voluntarily paying employees during a FMLA leave of absence.

Perhaps MOST IMPORTANTLY about FMLA is that the law guarantees you that you will be given your job back when you return, or at least a substantially similar one; such job protection is not available for those who are absent from work on sick leave, disability or other bases.

Act Wisely! Consider using our Model Memo Requesting FMLA Information, Forms and Procedures from Human Resources. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [clicking here.] Delivered Instantly By Email to Your Printer.

4. Disability Accommodation – In the U.S., the federal law, many state laws and even city laws and ordinances provide, in effect, “If you suffer from a disability, but you could do your job if you were provided by your employer a “reasonable accommodation,” then if you ask for one, you must be given one.” While that is something of a simplification, it is essentially what “disability accommodation” is all about.

What is a “disability?” A generalized definition of “disability” is a “limitation on a basic life function.” So, blindness (a limitation on seeing) is a disability, as is the being a paraplegic (a limitation on walking.) Also, Attention Deficit Disorder (“ADD”) (a limitation on focus and attention) has been recognized as a disability. Is illness – such as cancer – a disability? No. However, cancer can cause a disability; so, a man’s prostate cancer can lead to a limitation of the ability to go to the bathroom, or a woman’s cancer of the esophagus can lead to a limitation on eating in a common fashion. By the way, disabilities can be temporary.

What is a “reasonable accommodation?” It is a reasonable accommodation to install brail on signs at the office. It would probably be a reasonable accommodation to provide wheelchair-accessible bathrooms. It would probably be a reasonable accommodation to give an employee with ADD only one task at a time. However, if a bus driver or airline pilot was blind, it would probably not be a reasonable accommodation to ask the employer to provide an assistant to sit next to him or her to tell him or her where the bus and airplane are going. Whether or not a requested accommodation is reasonable is determined by considering many facts and circumstances.

More and more I have seen employers agree to provide, as a disability accommodation, the right of an employee to work from home a few days a week, especially where in-office workplace accommodation is difficult. For example, if due to a sight problem, fluorescent lighting is hard on your eyes, you might want to request working from home a certain number of days each week.

Whether to request an accommodation for a disability, and what accommodation to request is almost always a matter for patient and doctor to decide together.

You can get a copy of our Model Letter Requesting a Disability Accommodation at Work if you just [click here.] It shows you “What to Say, and How to Say It.”™ Delivered by Email – Instantly!

5. Short Term Disability (“STD”) Paid Leave – Short Term Disability (or “STD”) is a kind of insurance that provides employees who become ill or are injured off the job, and thus cannot work, to receive at least some monies on a regular basis for a limited period of time. In most U.S. states, there exists laws that require employers to have such STD coverage for their employees.

Eligibility: As to eligibility for STD depends on both state laws and on company policies: commonly – but not always – employees need to be employed (a) for six months (or similar period), and (b) for at least 30 hours (or some other number) of weeks per year, before being considered eligible for Short Term Disability benefits.

Waiting Period: Quite commonly, STD policies require a certain “waiting” period before STD benefits can be provided, often ten or 14 days. In many states, and in many companies, employees are required to use their available paid sick time before they can collect STD benefits.

Benefit Amount: The amount of benefits you are eligible needs to be determined: Typically, Short Term Disability benefits are a percentage – often 50% to 70% – of a person’s weekly salary. Commonly, employees call their Human Resources or Benefits departments to determine the benefit amount they may be eligible to receive. Where that is not the preferred route, for privacy reasons or otherwise, your State Labor Department may provide you with the minimum benefit amounts you are eligible for; remember, though, that your employer may provide more than the legally required amount of Short Term Disability benefits.

Benefit Duration: Most states have certain minimum lengths of time an employee is permitted to receive STD benefits. As examples, New York, Hawaii, Rhode Island and New Jersey all require that employees be provided with up to 26 weeks of Short Term Disability benefits.

Note that some employers designate the time employees are on short Term Disability as time taken off from the job under the 12-week statutory FMLA leave noted above.

6. Long Term Disability (“LTD”) Paid Leave – If your benefits period under Short Term Disability is soon due to expire, you may have available to you a policy of Long Term Disability. These policies are benefits paid for, in whole or in part, by your employer, that provide income continuation of certain amounts, for certain periods of time, under certain conditions. The easiest way to think about it is this: it is an insurance policy.

Commonly, Long Term Disability insurance, often called LTD, is available (a) only to a certain level of employees, (b) who have been employed by the company for a certain period of time. Payments are usually available only (c) after Short Term Disability benefits have expired, (d) paying a certain level of salary (commonly 50% to 75%). LTD policies commonly pay LTD benefits for a certain, specified period of time, such as (a) so long as the disability continues, (b) two years, (c) five years, (d) until age 65, or (e) lifetime. As you might imagine LTD policies are more expensive if they (i) kick in faster, (ii) pay more, and (iii) pay longest.

If your employer provides Long Term Disability policy coverage, chances are it has prepared a Summary Plan Description (commonly called an “SPD”) which lists the important facts you need to know.

P.S.: Become part of a growing movement; help others while you help yourself! Become a SkloverWorkingWisdom™ Sales Affiliate – encourage others to take advantage of our Model Letters, Memos, Checklists and Agreements. Earn a substantial commission. Just [click here.]

SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the bumps in the road. Understanding what your employment relation entails, and what its “term” is and means, is just one good example of that.

Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.

*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.

Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.

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About Alan L. Sklover

Alan L. Sklover, Employment Attorney and Career Strategist for over 35 years.

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and ‘uncommon common sense’ of Attorney Alan L. Sklover, the leading authority on “Negotiating for Yourself at Work.”